m 11 part 4The 1992 Butler Decision & Canadian Obscenity Law

1959 Criminal Code reform introduces Canada’s modern obscenity provision.
- Located in s.\;163(8) of the Code (language unchanged to present day).
- Definition: “Any publication, a dominant characteristic of which is the undue exploitation of sex or of sex in combination with crime, horror, cruelty, or violence.”
Key ambiguity: “undue” left undefined → judges must decide what sexual content crosses the line.
Four interpretive lenses (from previous lectures) all appear in Butler:
1. Moral-conservative view (common morality, protect public decency).
2. Civil-libertarian view (maximise free speech).
3. Radical-feminist view (pornography = violence / subordination of women).
4. (Implied) Liberal-pluralist/market view (consumer choice, minimal state interference).

Courts create a pragmatic standard: material is obscene if it would offend the “average Canadian.”
- Judges themselves decide who the average Canadian is → highly subjective.
- Early bench demographics: affluent white male judges → dominant culture’s morality embedded.
Canada treated as a single, homogeneous community; sub-cultures’ standards dismissed.
- Example (1970s): U of T student group screened pornography at a culture-night event.
- Defence: “No coercion; only willing adults attended.”
- Judge: Show may be acceptable to your “hippie” group, but it offends the average Canadian → therefore obscene.

Moral conservatism effectively sets legal doctrine, irrespective of minority or counter-culture practices.

Late 1980s: Donald Butler owned and operated a small video store in Winnipeg, which specialized in the sale and rental of sexually explicit films and publications, often referred to as hardcore pornography.
Following an RCMP raid on his business, a substantial number of charges were laid against him.
Approximately 200 charges (commonly quoted as 182) were brought under s.163(8) of the Criminal Code, which defined as obscene “any publication, a dominant characteristic of which is the undue exploitation of sex or of sex in combination with crime, horror, cruelty, or violence.”
These charges were specifically for selling and distributing a wide array of hardcore pornography, with each piece of material deemed potentially in violation of the obscenity provision leading to a separate charge.

Late 1980s: Donald Butler owned and operated a small video store in Winnipeg, which specialized in the sale and rental of sexually explicit films and publications, often referred to as hardcore pornography.
Following an RCMP raid on his business, a substantial number of charges were laid against him.
Approximately 200 charges (commonly quoted as 182) were brought under s.163(8) of the Criminal Code, which defined as obscene “any publication, a dominant characteristic of which is the undue exploitation of sex or of sex in combination with crime, horror, cruelty, or violence.”
These charges were

RCMP raid → approx. \approx 200 charges (commonly quoted: 182) under s.163(8) for selling hardcore pornography.

1982 Constitution Act repatriation → adds Charter.
- s.2(b): freedom of expression (includes speech, publication, film).
Clash: s.163(8) restricts sexual expression ←→ Charter protects expression.
Butler’s counsel: obscenity law violates Charter s.2(b) → should be struck down.

Does s.163 infringe Charter s.2(b)?
If yes, can it be justified under Charter s.1 (“reasonable limits prescribed by law, demonstrably justified in a free & democratic society”)?

Government may breach Charter rights to preserve “peace, order & good government” (POGG).
Used historically (e.g., G20 Toronto protests) to defend limitations on movement or assembly.
Analytical framework (Oakes Test—implied though not explicitly named in transcript):
1. Pressing & substantial objective.
2. Rational connection.
3. Minimal impairment.
4. Proportionality of effects.

Protesters detained in rain (“kettling”).
Courts later: Rights breached but justified for public order → section 1 in action.

Moral-conservative coalitions (churches, right-wing orgs): defend obscenity ban, preserve morality.
Canadian Civil Liberties Association: strike down law → protect free expression.
Feminist organisations (LEAF): argue pornography equals gendered harm; invited US radical-feminist scholar Catharine MacKinnon to draft their brief.

Infringement: YES. Obscenity provision restricts expression contrary to s.2(b).
Justification: YES. Restriction upheld under s.1 because it serves a valid objective—reducing sex-linked harm and inequality.

Admits community-standards test too vague & value-laden.
Adopts radical-feminist harm-based analysis: primary concern is sex-based inequality & violence, not just moral offense.
Redefines “undue exploitation” via a three-tier typology:
1. Explicit sex with violence
- Automatically obscene; criminal.
1. Explicit sex, non-violent, but degrading or dehumanising
- Presumed obscene if it “substantially increases risk of harm” (objectification, inequality).
1. Explicit sex, neither degrading nor dehumanising
- Generally not obscene; protected expression.
Only defence: artistic merit (must demonstrate serious artistic value).

Clarifies obscenity doctrine; shifts test from “community offense” → “harm to equality & social interests.”
Radical-feminist framing becomes part of Canadian constitutional law.
Law survives Charter scrutiny; pornography still regulable in Canada, but with a narrowed, harm-based focus.
Illustrates how multiple ideological frames (moral conservative, feminist, libertarian) vie for dominance in constitutional interpretation.
Demonstrates SCC’s willingness to retain criminal prohibitions if they can be justified under s.1.
Continues to guide prosecutions: courts categorize material using Butler’s 3-tier scheme and assess artistic merit.