HUMA 1825 Note 17
- We have the Keegstra case, the Butler case and the Bedford case (about
- Labaye is a criminal law case (like Lavallée) and it examines the concept that
is close to obscenity (indecency)
o Given what is involved in the second segment of the course, it is
necessary to review:
- There are two main themes with the second segment:
o One: the Mill- Devlin debate on when the criminal law must be used to
criminalize morality (or to legislate morality)
o Two: How to do and understand a constitutional law case that deals
with the Mill – Devlin debate
o All the materials are interrelated in this segment.
- In Butler we have a (valiant) attempt or struggle to show that Mill and not
Devlin type analysis is operative where porn and obscenity are concerned.
- In constitutional law cases – the law itself is on trial, not so much the
individual who is accused, but the law itself.
o This is in the sense that some statute (federal or provincial) [Criminal
Code = federal statute) or legislative provision that the accused is
alleging is unconstitutional
This is the thrust of constitutional cases – to put the law on
The accused says that these provisions of the federal
statute under which he has been charged with a crime
that they violate a higher law (Supreme Law of the Land
– The Charter)
o The Charter plays the role that the rule of
recognition plays in Hart’s legal system
o This means that the rule of recognition is the law
by which the validity of all the other laws in the
legal system are determined.
o In The Keegstra case (On hate Speech) it was 319(2)
o In The Butler Case (on obscenity) it was 163(8)
The accused (in both cases) claim that these statutes infringe
their section 2(b) of the Charter rights.
The Constitutional Case Method
- In every instance of constitutional law the courts follow a two-step
procedure of whether a law should be struck down as unconstitutional.
o Step 1: Decide whether the impugned law violates the freedom of
expression guaranteed to the accused under section 2 (b) of the
The Court has a test to answer this question: the test is taken
from the Irwin Toy Case: Irwin Toy says that an expression is protected as an
expression under section 2(b) of the Charter if it has
meaning or attempts to convey meaning.
o If the answer to that question is yes, (if it has
meaning or attempts to convey meaning) it
doesn’t matter what the content of that
o Therefore, if it doesn’t matter if the content of
the expression offends us; what matters is that it
o The only expression under the Irwin Toy test
that won’t be protected is the expression that is
physically violent or that is an incitement to
The Second Branch of the Irwin Toy test asks whether the
impugned violation seeks to limit and restrict expression.
In Keegstra, the court easily determines that his
statements are in fact protected, and determines that
the provision in the criminal code under which Keegstra
was charged with a crime violates Keegstra’s section
2(b) rights and is not constitutional
o After Step 1, the court says that the impugned law indeed does violate
the accused’s right
o Step 2: After the court finds that there has violation to the accused’s
right, it moves to an analysis under s.1 of the charter that allows the
rights to be limited under certain conditions, following a certain
course of action.
Here, the court is engaged in a balancing act – it’s trying to
figure out what are the costs and benefits of limiting freedom
of expression (hate expression) v. the costs and benefits of
allowing freedom of expression (hate expression)
It’s balancing various values – on the one hand, allowing
freedom of expression has different benefits such as the full
self-development of individuals who say what they think freely
and fully. It allows truth to emerge in the marketplace of ideas.
It makes for a robust democracy – it allows us all to participate
as citizens in our democracy by saying fully and freely what we
think about our politics.
On the other hand there are benefits of restriction such as
equality and individual value of each person’s dignity. There is
also the value of social harmony that follow from restricting
o Therefore, the court has to figure out where the point of balance is
with all the competing costs and benefits In Aristotle, it has to find the Golden Mean of Expression – the
point where the costs and benefits balance themselves out.
o The Oakes Test – this is the balancing of costs and benefits used in all
First prong of the Oakes test asks
What is the objective of the impugned legislation? Is the
objective pressing and substantial? Only such an
objective will satisfy the first prong of the test
In the Keegstra case, all of them agreed that the
objective of the hate-propaganda laws of the Criminal
code was to prevent the harm of hate speech to
members of the targeted groups and social harmony.
In Butler, the court strains to establish harm (of
obscenity) – analogous to the harm of hate speech
o You decide whether the court succeeds or fails.
Second prong of the Oakes test asks three different
questions of proportionality of whether the means
chosen to prevent harm are proportionate and
appropriate to indeed achieve the objective.
o Primarily the court wants to know if there is a
rational connection between the objective and
the means of achieving the objective.
In Keegstra, the dissent thinks that the
means don’t achieve the objective – they
think that the hate propaganda law will
achieve the opposite effect that it intends
and might increase the popularity of the
hate monger rather than reduce.
o Secondly, the court wants to know if there is
minimal impairment to the accused’s freedom in
question that is restricted.
In Keegstra the dissent thinks that the
impugned law is too vague and will cause
a “chilling effect” on speech
o Thirdly, are the over all costs of restricting
freedom of expression outweighing the benefits
of the cost of restricting freedom
- Pornography, indecency and obscenity are used interchangeably.
o You will note in Butler that materials are obscene are also referred to
as indecent, and the words obscenity and porn are used
For Example, pg. 378 Sopinka speaks about the various
relationships. Butler Case
- Butler had a store in Winnipeg where he sold and rented pornographic
material such as videos, magazines, etc.
o The shop was an adult video shop containing a notice on the door “if
this kind of material offends you, don’t come in!”
o If you were under 18 years of age, you weren’t allowed to come in.
- In 1987 the police Charged Butler with 250 counts under the obscenity
provision under the criminal provision of Canada
o In response, Butler used the same arguments as Keegstra about the
unconstitutionality about section 163(8)
- He argued that the law on obscenity violated his section 2 (b) rights under
the Charter, and therefore should be struck down.
- The focus of this case is Section 163 of the Criminal Code (Page 368)
o Any publication the dominant characteristic of which is the undue
exploitation of sex or any one or more of the subjects (crime or
cruelty of the subject) shall be deemed obscene.
o This is a two part definition
“The exploitation of sex” has to be both dominant and undue
exploitation of sex
Undue is the problem because it references a degree of
Up until a certain point, the exploitation is all right.
When it becomes undue it is now a matter of degree,
the exploitation of sex is excessive and too much
When it is “undue” under the legislation, then it attracts
the attention of the police, and people may be charged
with obscenity of 163(8)
The problem is that the parliament doesn’t fully define
what “undue” means.
o Where is the bright line that tells when you’ve
crossed from what is permitted to what is
The other part of definition of “obscenity” is when sex is
coupled with crime, horror, cruelty and violence. Therefore,
obscenity will be deemed to be made out – it doesn’t actually
have to be made out in any publication where the dominant
characteristic is the undue exploitation of sex or where there is
sex together with crime, etc.
- Therefore, does the law violate his right, and if yes, then can it be saved
under s.1 of the Charter?
- The lower courts took him to trial
o The trial judge convicted him on 8 counts, and acquitted him on 242
o The Crown appealed the decisions and then Butler Cross appealed - At the Manitoba Court the majority of the judges convicted him on 250
judges, the dissent of Twaddle would dismiss the appeal and allow conviction
on 8 charges, and the dissent of Helper would acquit him on 250 charges.
- Helper believes that it shouldn’t be the responsibility of judges to define the
bigger concepts such as “obscenity”
o Therefore, when the case gets to the Supreme Court of Canada
- The First order of business is to define what obscenity means.
o This question has to be answered