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
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
criminalized. o The Hicklin test (first method of testing obscenity) was made in the
19 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
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
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
morality) 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
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
- Labaye was not found guilty even though the criminal case went up to
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. - The dissent says that harm is only one possible way to determine what the
community will not tolerate amongst other things.
o It will not tolerate something that the community finds immoral, even
if that action is harmless.
o The test must decide the nature of the acts and the context of the act
- The problematic nature of Labaye is that anything that displays women in
bad light can create anti-social behaviour. However, you can argue that
dispute putting them in that light, there is no direct way of proving that such
actions will cause antisocial behaviour.
o There is an argument of risk that group sex might further the spread
of STDs, however it can also be argued that STDs can be spread in
- There is no actual harm other than the Canadian values, however these
values are metaphysical and not mechanical, meaning that harm towards
values wouldn’t necessarily cause arbitrary behaviour in society.
o According to the harm-based test there is no harm in Labaye because
the business room has to specifically do with private business, and
therefore does not influence the public.
- The dissent says that when harm is properly interpreted, it is clear whether
certain actions are harmful towards community or not.
o There are other indicators in which people can object to actions.
These include purely moral grounds or matters of principle.
These principles are part of law, legal history and record.
- There are no laws in Canada prohibiting prostitution because we have the
right to engage in commercial activity:
- There are three specific actions criminalized regarding prostitutions that
relate to the Bedford case.
o S.210 Owning/operating a common bawdyhouse
A bawdyhouse is an establishment where a prostitute conducts
o S. 212 (1)(j) that prohibits living on the avails of prostitution
This provision works against the possibility of pimps or other
individuals profiting off of prostitution, and doesn’t focus on
limiting prostitutes themselves.
However, this provision causes prostitutes to be unable
to use their money to hire bodyguards, drivers and
o S. 213 (1)© that prohibits the communicating or the purposes of
prostituting in public
- Bedford and her fellow associates brought a case against these three
provisions claiming that they are unconstitutional o They claimed that all three sections infringed their section 7 rights to
life, liberty, and security of the person, as well as section 213(1)© of
infringing on their section 2(b) freedom of speech.
o Because the related activities are criminal, yet necessary to protect
prostitutes from harm, the criminalizing of those related activities are
in violation of the Charter.
- The trial judge agreed with the respondent’s arguments in the sense that the
laws exacerbate the problem that prostitutes already face.
o They also said that it was much safer to work indoors and hire staff.
o She also said that the soliciting in a public space allows for the ability
to screen clients
- The court of appeal agreed with the trial judge’s decisions except for one
exception – they disagreed