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HUMA 1825 Study Guide - Midterm Guide: Ex-Gay Movement, Civil Disobedience, Hicklin Test

Course Code
HUMA 1825
Neil Braganza
Study Guide

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HUMA 1825 Test Note 6
- Butler had a store in Winnipeg where he sold and rented pornographic
materials such as videos, magazines, etc.
o In 1987 the police charged Butler with 250 counts under the
obscenity provision under the criminal code of Canada
Butler claimed that s.163 (8) of the Criminal Code violated his
section 2(b) of Charter rights
- Section 163 (8): 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 to be obscene
o The exploitation of sex is a two-part definition it has to be both
dominant and undue
Undue is the problem because it references a degree of
Up until a certain point, exploitation is all right, but if it
is too excessive it becomes undue.
However, the police do not properly defined what
undue means
Obscenity is a problem when sex is coupled with crime, horror,
cruelty, or violence.
- In Butler, the Oakes test was applied as follows:
o The objective was to strain the establishment of harm (obscenity)
analogous to the harm of hate speech
- The problem with Butler is that the test pornography, indecency, and
obscenity and used interchangeable.
- The lower courts took Butler to trial, convicted him on 8 counts and
acquitted him on 242 counts
o The crown appealed the decisions, brought it to the Manitoba Court of
Appeal where the judges convicted him on 250 charges. Butler
appealed this decision.
- In Supreme Court the first order of business was to define what obscenity
o Will determining obscenity be subjective or objective? Due to its
vagueness, it will most likely be more subjective.
- Historic representation of obscenity:
o First used in 1663 where the court assumed the role of the guardian
of public morals.
The court focuses on what it thinks is the public corruption of
morals. It was thought that obscene materials tended to
corrupt the morals of the king’s subjects
Relate this back to Devlin, who thought that that which
threatens the moral fiber of society has to be

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o The Hicklin test (first method of testing obscenity) was made in the
19th century and it was used to say that the test was whether the
tendency of the matter charges as obscenity is to deprave and corrupt
those whose minds are open to such immoral influences, and into
whose hands a publication of this sort may fall.
The Hicklin test was entirely subjective to what the judge
o In 1892 there was a legislature that made it an offense to sell any
printed manner tending to corrupt morals.
o In 1959 David Bolton proposed the statutory amendment to the
criminal code, creating s.163 (8)
This is the law under which people are charged and the law
that judges have to interpret
o Brodie Case (1962) involves a book (Lady Chatterley’s Lover) about
an aristocratic English woman who has an affair with her husband’s
games keeper.
This book was tried as obscene, with the importance lying in
the community standards of tolerance test (thought to be
It was what the community (not individual judge) felt
and thought.
This was a general test of what was to be decent or
There is also the Internal necessities test (artistic defense)
This is done to asses whether the exploitation of sex has
a justifiable role in advancing the plot of the theme, and
therefore must have a necessary role in the work itself.
Both of these tests essentially focus on whether the community
applies the standards or if the court determines the standards
without any regard.
o The Goldberg Case dealt with a movie (Dracula Sucks) and gave a two-
part definition for the community standards test
The community had to be national, and therefore the standard
was to be applied at a national level
The test had to be evolving and contemporary, thus judging the
material by modern standards.
o Community standards test pertaining to tolerance and not to taste
This was made under the notion that you may not personally
like the material, but you would be willing to tolerate it.
o The Degradation and Dehumanization test now developed to see
whether the material would be degrading or dehumanizing to women
and children in society, thus making it harmful.
- Constitutional Dealings in Butler:
o The objective of the Oakes test was to prevent harm (not legislate

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o There was a problem establishing a connection with obscenity and
harm, seeing as porn is a multi-billion dollar industry, and not
everyone who watches porn commits acts of violence against women.
o The stronger the inference of harm, the lesser the likelihood of
- This is the final part of moving away from the Hicklin subjective and
moralistic test in the definition of obscenity within Canadian law. It works
towards an objective point of view.
- Labaye requires more impartial evidence and facts to back up the claims the
specific behaviours (gang-bang) cause physical harm. Vague generalizations
will not suffice the causal link between images of sexuality and antisocial
behaviour cannot be assumed. Attitudes in themselves are not criminal, no
matter how disgusting they appear. Therefore, it is necessary to have
o There are three types of harm:
First: the harm to people’s autonomy and liberty
If there are any harmful interferences with people’s
everyday routines.
Second: the harm that predisposes people to anti-social
Watching obscene material will in turn make people
Third: Injury to the person engaging in activity
If you do something harmful towards yourself.
o Defining these kinds of harm are necessary because it shows if they’re
consistent with the Charter, and it also necessitates proving that
specific case behaviour leads to these types of harm (beyond
reasonable doubt)
- Labaye was not found guilty even though the criminal case went up to
Supreme Court.
o Labaye ran a club that had a strict screening process, restricted access
it was only for members, there was a code you had to punch in to
access the “business room”
People would have group sex in this room. It was all
consensual, voluntary, and no one had to pay for it. This meant
that the place was private enough, and no one was harmed.
- The problem with Labaye is finding a test of indecency
o In Butler they that there’s a community standards test that can be
infringed if there is a likelihood of harm from the publication, meaning
that if there is a justified risk of harm, the material is obscene.
- The majority decided that “harm” was the only aspect that mattered of what
the community thinks
o This wasn’t specifically said in the Butler case.
o The majority’s focus is purely on a harms-basis.
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