Lecture at: 03/10/2014
C LASS N OTES FOR : 3NN6
McMaster University, Fall 2013
M ONDAY , F EBRUARY 3, 2014
- Any expression that warrants protection falls within the three categories
- It has to attempt to convey a meeting. If it fits one of these two criteria, then it does fall within the
2(b) of the charter of rights and freedoms. What about expression that is not popular? That falls
outside the main stream? That might be harmful to society? Does this attract the same kind of
Commercial expression is protected in the same way as other expression
o Profit, etc. it also protected like others!
Criminal protection (exciting a riot, treason against gov’t, solicitation of prostitution) -- this
is protected under 2(b) but the gov’t can limit and it has to justify it as being necessary under
Is pornography something that should be permitted under section 2(b)? Does it warrant
R.V. ButleYes its worthy of protection, 250 counts of obscene material. Both the crown and accused
o What is the definition of OBSCENITY?
The definition that was (in the criminal code) (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.
• Definition offended 2(b) of the charter
• ANY KIND OF PORNOGRAPHY presumably for self-fulfillment, or to convey
• Was it justifiable under section 1?
The purpose of the law was to uphold the community standards and to prevent the
degradation of women and avoidance of harm to society. The purpose of the
• Only the publication of sex that offended these criteria of community
standards, preventing degradation of women could be justified and avoidance
of harm to society.Anything that did not fit to meet this purpose could not be
• The court ended up dividing sex into three criteria
o Explicit sex with violence
o Explicit sex without violence that degraded or dehumanized at least
one of the participants
o Explicit sex that had neither violence nor degradation
Angie © McMaster University 1
Winter 2014 Lecture at: 03/10/2014
• They held that the first two fell within the definition of obscene, and the gov’t
could impose limitations upon these.
• However sex without either violence or degradation / dehumanizing
behaviour could not be saved / justified under section (1).
• The gov’t could prohibit the demonstration of material where it was sex with
violence and degradation.
o PROPORTONALITY aspect of the OAKES TEST -- this does not stand on equal footing
with other kinds of freedom of expression, which directly engaged the core values of
freedom of expression
• Pornography being a different kind of expression was buttressed by the
argument that this was solely targeted because it was motivated for profit.
• This material was solely targeted because it was set for profit
IN BUTLER TWO STANDARDS OF EXPRESSION
• (1) Core values expressed in freedom of expression (truth, democracy and
individual self fulfillment)
• (2) Those that are not driven by the purposes of truth, democracy and
individual self -fulfillment
• Applied a less stringent section 1 test. Did not make the gov’t job as tough as
it would have if it had been about being able to stand on the corner and
denounce the gov’t.
TWOADDITIONAL FACTORS in section 1 analysis.
• (1) Whether it falls outside of the core values
• (2) Whether it is for profit or personal gain (would include giving it away,
letting people view or sell it)
• Does not change the steps employed in the section 1 analysis, but it does
matter in terms of how far you will hold the gov’t in order to succeed on the
section 1 analysis.
R. v. Sharp
Man arrested challenges child porn charges, especially on material he created for his
Court errs on the side of caution by upholding most of the law as it is agreed to be
harmful and the risks of allowing the material are too great. However, creates
exceptions for material that is created by one for one’s own use and material
involving oneself and consenting partners as it is so unlikely to harm society that
there is no justification for banning it. Reads an exception into the law.
FACT: Mr. Sharp was an individual from British Columbia who was charged with the
possession of child pornography.
Including in his possession were pictures and videos of children.
o (Mr. SHARP) He argued that the laws against the prohibition of child pornography
were a violation of section 2(b) and could not be justified under section 1, as it was
o He argued that the definition included material that posed no harm to children.
Pictures of children kissing and hugging their parents could be caught on “child