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HUMA 1825 Test Note 6.docx

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HUMA 1825
Neil Braganza

HUMA 1825 Test Note 6 Butler - 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 exploitation.  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 meant: 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 thought. 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 objective)  It was what the community (not individual judge) felt and thought.  This was a general test of what was to be decent or indecent.  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 tolerance. Labaye - 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 evidence. 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 conduct/behaviour  Watching obscene material will in turn make people obscene.  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. - 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 itself. - 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 normal sex. - 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. Bedford - 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 her work 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 other services. 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
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