Applications Of Feminist Legal Theory

BUTLER v. THE QUEEN

110 BUTLER v. THE QUEEN [1992] 1 S.c.R. 452 SOPINKA,j. [The defendant, Butler, owned and operated a store selling and renting hard core pornographic videos and magazines and selling sexual paraphernalia. He was convicted of8 counts ofpossession and sale ofobscene materials (relating to eight different films) and acquitted on 242 counts. The Crown appealed the 242 acquittals; Butler appealed the convictions. The Court of Appeal for Manitoba dismissed Butler's appeal, and entered convictions on the remaining 242 counts. However, the Court of Appeal, disagreeing with the trial court which had ruled that the obscene articles were protected by the free expression guarantee, concluded that obscene materials were not protected by §2 (b) ofthe Charter because they were materials which (1) did not conveyor attempt to convey meaning and (2) consisted of undue exploitation of sex and degradation of sexuality, a form of activity which the Charter was not intended to protect.] Criminal Code, R.S.C. 1985, c. C-46, §163 provides: (1) Every one commits an offence who, (a) makes, prints, publishes, distributes, circulates, or has in his possession for the purpose of publication, distribution, or circulation any obscene written matter, picture , model, phonograph record or other things whatever. ... (8) For the purpose of this Act, any publication a dominant characteristic ofwhich is the undue exploitation of sex, or of sex and anyone or more of the following subjects , namely, crime, horror, cruelty and violence, shall be deemed to be obscene. The following constitutional questions are raised by this appeal: [Does §163 of the Criminal Code violate §2 (b), the freedom of expression guarantee, of the Canadian Charter of Rights and Freedoms? If so, can Section 163 nonetheless be upheld under§1 of the Charter, the guarantee of equality, as a reasonable limit prescribed by law?] ... Before proceeding to consider the constitutional questions, it will be helpful to review the legislative history of the provision. . . . Uustice Sopinka first noted the absence of any early statutory definition. Although the judiciary later supplied a definition in R. v. Hicklin, (1868) L.R. 3 Q.B. 360, that definition was repudiated subsequently by Parliament. As a result, the Criminal Code became the exclusive definition ofobscenityCopyrighted Material Butler v. The Queen I III liament. As a result, the Criminal Code became the exclusive definition of obscenity- "[i]n order for the work or material to qualifY as 'obscene,' the exploitation ofsex must not only be its dominant characteristic, but such exploitation must be 'undue.''' Sopinka then addressed the judicially developed tests of "undue exploitation."] ... The most important [test] is the "community standard of intolerance" test.... It is the standards of the community as a whole which must be considered and not the standards of a small segment of that community.... The standard to be applied is a national one. [T]he community standards test is concerned not with what Canadians would not tolerate being exposed to themselves, but what they would not tolerate other Canadians being exposed to.... [Another test is the "degradation or dehumanization" test.] There has been a growing recognition ... that material which may be said to exploit sex in a "degrading or dehumanizing" manner will necessarily fail the community standards test. ... Among other things, degrading or dehumanizing materials place women (and sometimes men) in positions of subordination, servile submission or humiliation. They run against the principles of equality and dignity of all human beings. In the appreciation of whether material is degrading or dehumanizing, the appearance of consent is not necessarily determinative. Consent cannot save materials that otherwise contain degrading or dehumanizing scenes. Sometimes the very appearance of consent makes the depicted acts even more degrading or dehumanizing. This type of material would, apparently, fail the community standards test not because it offends against morals but because it is perceived by public opinion to be harmful to society, particularly to women. While the accuracy of this perception is not susceptible ofexact proof, there is a substantial body ofopinion that holds that the portrayal of persons being subjected to degrading or dehumanizing sexual treatment results in harm, particularly to women and therefore to society as a whole. See R. v. Wagner, (1985) 43 C.R.(3d) 318, 336. See also Attorney General's Commission on Pornography (the "Meese Commission"), Final Report (U.S., 1986), vol. 1, at pp. 938-1035; Metro Toronto Task Force on Public Violence Against Women and Children, Final Report (1984), at p. 66; Report of the Joint Select Committee on Video Material (Australia...