316:. On October 19 of that year, Butler simply restarted the business at the same location as it had been before, and the police arrested Butler and an employee, Norma McCord, ten days later. Both were charged for 77 counts under s. 159 (now s. 163); two counts of selling obscene material, 73 counts for possessing obscene material for the purpose of distribution, and one count of possessing obscene material for the purpose of sale, all of which were contrary to either s. 159 (2)(a) or s. 159 (1)(a). Butler was found guilty of eight charges, while McCord was found guilty of two. They each had to pay $ 1000 per offence. The trial had been held on June 22, 1988. However, LEAF (Women's Legal Education and Action Fund), along with GAP (Group Against Pornography), and various other anti-pornography groups were unhappy with the verdict and appealed to the Crown. Butler had to return to court on July 4, 1991 where he was found guilty. In turn, Butler appealed and he went to the Supreme Court of Canada on February 27, 1992, where he was found guilty and pornography legislation was modified in Canada. Afterward, Butler moved away to Alberta where he was diagnosed with a severe heart condition. After legislation was passed, Butler had to return to trial, but was too ill to return to Winnipeg for the trial, so it was held in Alberta in 1993.
387:(1986). Objectives suggested by the Crown included prevention of harm that may arise from the attitudes promoted by the obscenity. The protection of decency was also a proposed objective. Those challenging the law stated its only objectives were moral. Historically, the objective of the law was meant to combat immorality and its impact on society. The Charter of Rights suggested this objective would no longer be sufficient, as it contradicted the individual's rights. While many criminal laws were enacted against perceived immoral things, the Supreme Court turned away from this objective and decided the true objective of the law was to minimize dangers to society. The Court noted obscenity could encourage degrading views of women and could promote violence. This contradicted the view of Canada as a society in which people are equal. Typically, the original purpose of the law is what is considered under section 1. In this case, the Supreme Court justified itself by saying the original purpose of avoiding immorality, and the recognized purpose in this case, of preventing harm, were linked. The immorality could lead to harm. The Court also noted that Canada had international agreements that targeted obscenity, namely the
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339:(1989) in saying the obscenity did not attempt to convey anything meaningful and might just be physical. However, the Supreme Court found fault with this opinion, saying that while the obscenity related to physical matters, they still made expression. In this case the expression was meant to be sexually exciting. The Court also noted that degrading sex may not be protected by the Charter, but a depiction of it would be expression.
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then went on to state that materials in the first category "will almost always constitute the undue exploitation of sex." Material in the second category "may be undue if the risk of harm is substantial." And, finally, material in the third category "is generally tolerated in our society and will
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With a sufficient objective identified, it now had to be asked whether the law was rational and proportionate to the objective. The Court noted, then, that the law should not affect acceptable pornography, namely the type that might celebrate female sexuality and pleasure. Material that degrade
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The Court also considered a view suggested by the
Attorney General of British Columbia, suggesting that films could not be as expressive as writing. The Supreme Court rejected the idea, noting that in making a film many creative choices in editing will have to be made.
414:. Moreover, a vague definition of obscenity in the law was acceptable since politicians had difficulty in drawing up comprehensive definitions. Making the obscenity public was criminalized while private materials may not be.
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is partially meant to avoid a situation in which a biased idea of obscenity is imposed on others. The
Supreme Court also found that "It may serve repeating that the national community standard relates to harm not taste."
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not qualify as the undue exploitation of sex unless it employs children in its production." Any material that was considered to be the "undue" exploitation of sex would fall within the definition of "obscene" in the
378:(1988), said that a law that can be interpreted differently is not necessarily too vague. The Court then decided that given the past case law, the terms "indecent" and "immoral" seemed sufficiently understandable.
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to say that indecency can be defined as only that which causes harm. Thus, the majority disregarded the community standards test, despite the dissent's objections that this was not an inevitable consequence of
403:. It was rational to outlaw obscenity in order to protect society. Although it was disputed whether obscenity truly promotes harm, some reports did support this conclusion. The courts could then defer to the
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Charter. This raised the possibility that the law was so vague that it might fail the section 1 requirement that a limit be "prescribed by law." The Court, citing the Beetz opinion in
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argued that the test failed to recognize pornography that promotes equality of homosexuals. However, the
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and confiscated the goods, and then charged Butler with possession and distribution of obscenity, crimes under section 163 (then section 159) of the
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1 S.C.R. 452, 89 D.L.R. (4th) 449, 2 W.W.R. 577, 70 C.C.C. (3d) 129, 11 C.R. (4th) 137, 8 C.R.R. (2d) 1, 78 Man. R. (2d) 1, 78 Man. R. (2e) 1
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Christopher P. Manfredi; Scott
Lemieux, "Judicial Discretion and Fundamental Justice: Sexual Assault in the Supreme Court of Canada,"
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2. Explicit sex without violence, but which subjects participants to treatment that is degrading or dehumanizing; and
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Violence in this context was considered to include "both actual physical violence and threats of physical violence."
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Mahoney, Kathleen E. 1997. "Freedom of expression: Hate propaganda, pornography and section 1 of the
Charter." In
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Mahoney, Kathleen E. 1993. "Destruction of women’s rights through mass media: Proliferation of pornography." In
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it was noted that whatever the message within the expression, the expression itself is protected by section 2.
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The case involved one Donald Victor Butler, who owned a store called Avenue Video
Boutique on Main Street in
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The decision has affected other cases involving pornography and other alleged forms of indecency. The case
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In asking whether the law could be demonstrably justified, the objective was considered, in accordance with
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The Court then turned to the question of whether the infringement of section 2 could be justified under
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eds. Denis N. Magnusson and Daniel A. Soberman, 81-100. CAN: Institute of
Intergovernmental Relations.
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with PRQ co-editor Amy Mazur, Catharine MacKinnon, Kathleen
Mahoney, William Hudnut, and Max Waltman).
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Segal, Lynne (February 1998), "Only the
Literal: The Contradictions of Anti-pornography Feminism",
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Sopinka J., joined by Lamer C.J. and La Forest, Cory, McLachlin, Stevenson, and Iacobucci JJ.
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Equality and the Charter: Ten Years of Feminist Advocacy Before the Supreme Court of Canada.
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The Court found the law to be proportional. The legislation did not outlaw non-degrading
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Taylor, Joan Kennedy. 1994. "Does Sexual speech harm women? The split within feminism."
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Convention for the Suppression of the Circulation of and Traffic in Obscene Publications
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eds. Kathleen E. Mahoney and Paul Mahoney, 757–76. Dordrecht Neth.: Martinus Nijhoff.
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Undressing the Canadian state: The politics of pornography from Hicklin to Butler.
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demonstrated freedom of expression should be interpreted expansively, and in the
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The Court found laws against obscenity would breach freedom of expression.. The
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3. Explicit sex without violence that is neither degrading nor dehumanizing.
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Lorraine Johnson, "Sideways Glances: Looking at Porn, Looking at Art," in
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The court also provided for an exception for materials of artistic merit.
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method of analysis of pornography to homosexual pornography. Critics of
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Agreement for the Suppression of the Circulation of Obscene Publications
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with women's rights. The outcome has been described as a victory for
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Little Sisters Book and Art Emporium v. Canada (Minister of Justice)
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Little Sisters Book and Art Emporium v. Canada (Minister of Justice)
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348:(1990) to say the obscenity laws violated freedom of expression.
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2nd ed. New York: Foundation Press (commenting Butler; chap. 10).
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Montgomery CA: Emond Montgomery (Submitted "Factum" in Butler).
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Blue politics: Pornography and the law in the age of feminism.
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had found that it would not, following the Supreme Court case
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Human rights in the twenty-first century: A global challenge,
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divided potentially obscene materials into three categories:
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Suggestive Poses: Artists and Critics Respond to Censorship
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The criminal offence of distribution of obscenity infringes
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Judging Obscenity: A Critical History of Expert Evidence.
273:. In this case, the Court had to balance the right to
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Women's Legal Education and Action Fund (LEAF). 1996.
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Gay male pornography: An issue of sex discrimination.
503:(2005), the Supreme Court considered clubs in which
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List of Supreme Court of Canada cases (Lamer Court)
456:This framework for analysis was re-affirmed by the
546:(7th Cir. 1985), aff'd mem., 475 U.S. 1001 (1986)
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336:Irwin Toy Ltd. v. Quebec (Attorney General)
650:vol. 63, no. 1 (2010): 218-237 (including
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710:5 (Spring): 49-61 (commenting on Butler).
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244:Learn how and when to remove this message
675:Quebec: McGill-Queen's University Press.
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207:This article includes a list of general
188:Gonthier J., joined by L'Heureux-Dubé J.
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