R. v. Butler [1992] 1 S.C.R. 452: -- Obscenity -- Obscene materials -- Whether definition of obscenity in Criminal Code infringes s. 2(b) of Canadian Charter of Rights and Freedoms -- If so, whether infringement justifiable under s. 1

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Stevenson and Iacobucci JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA

Constitutional law -- Freedom of expression -- Obscenity -- Obscene materials -- Whether definition of obscenity in Criminal Code infringes s. 2(b) of Canadian Charter of Rights and Freedoms -- If so, whether infringement justifiable under s. 1 of Charter -- Criminal Code, R.S.C., 1985, c. C-46, s. 163(8).

Criminal law -- Obscenity -- Obscene materials -- Whether definition of obscenity in Criminal Code infringes freedom of expression guaranteed in s. 2(b) of Canadian Charter of Rights and Freedoms -- If so, whether infringement justifiable under s. 1 of Charter -- Criminal Code, R.S.C., 1985, c. C-46, s. 163(8).

The accused owned a shop selling and renting "hard core" videotapes and magazines as well as sexual paraphernalia. He was charged with various counts of selling obscene material, possessing obscene material for the purpose of distribution or sale, and exposing obscene material to public view, contrary to s. 159 (now s. 163) of the Criminal Code. Section 163(8) of the Code provides that "any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of . . . crime, horror, cruelty and violence, shall be deemed to be obscene". The trial judge concluded that the obscene material was protected by the guarantee of freedom of expression in s. 2(b) of the Canadian Charter of Rights and Freedoms, and that prima facie only those materials which contained scenes involving violence or cruelty intermingled with sexual activity or depicted lack of consent to sexual contact or otherwise could be said to dehumanize men or women in a sexual context were legitimately proscribed under s. 1. He convicted the accused on eight counts relating to eight films and entered acquittals on the remaining charges. The Crown appealed the acquittals. The Court of Appeal, in a majority decision, allowed the appeal and entered convictions with respect to all the counts. The majority concluded that the materials in question fell outside the protection of the Charter since they constituted purely physical activity and involved the undue exploitation of sex and the degradation of human sexuality.

Held: The appeal should be allowed and a new trial directed on all charges. Section 163 of the Criminal Code infringes s. 2(b) of the Charter but can be justified under s. 1 of the Charter.

Per Lamer C.J. and La Forest, Sopinka, Cory, McLachlin, Stevenson and Iacobucci JJ.: While the constitutional questions as stated concern s. 163 in its entirety, this appeal should be confined to an examination of the constitutional validity of the definition of obscenity in s. 163(8). Section 163(8) provides an exhaustive test of obscenity with respect to publications and objects which exploit sex as a dominant characteristic. In order for a work or material to qualify as "obscene", the exploitation of sex must not only be its dominant characteristic, but such exploitation must be "undue". The courts have attempted to formulate workable tests to determine when the exploitation of sex is "undue". The most important of these is the "community standard of tolerance" test. This test is concerned not with what Canadians would not tolerate being exposed to themselves, but with what they would not tolerate other Canadians being exposed to. There has been a growing recognition in recent cases that material which may be said to exploit sex in a "degrading or dehumanizing" manner will necessarily 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 women. In the appreciation of whether material is degrading or dehumanizing, the appearance of consent is not necessarily determinative. The last step in the analysis of whether the exploitation of sex is undue is the "internal necessities" test or artistic defence. Even material which by itself offends community standards will not be considered "undue" if it is required for the serious treatment of a theme. Thus far the jurisprudence has failed to specify the relationship of these tests to each other.

The courts must determine as best they can what the community would tolerate others being exposed to on the basis of the degree of harm that may flow from such exposure. Harm in this context means that it predisposes persons to act in an anti-social manner, in other words, a manner which society formally recognizes as incompatible with its proper functioning. The stronger the inference of a risk of harm, the lesser the likelihood of tolerance. The portrayal of sex coupled with violence will almost always constitute the undue exploitation of sex. Explicit sex which is degrading or dehumanizing may be undue if the risk of harm is substantial. Explicit sex that is not violent and neither degrading nor dehumanizing is generally tolerated in our society and will not qualify as the undue exploitation of sex unless it employs children in its production. If material is not obscene under this framework, it does not become so by reason of the person to whom it is or may be shown or by reason of the place or manner in which it is shown.

The need to apply the "internal necessities" test arises only if a work contains sexually explicit material that by itself would constitute the undue exploitation of sex. The portrayal of sex must then be viewed in context to determine whether undue exploitation of sex is the main object of the work or whether the portrayal of sex is essential to a wider artistic, literary or other similar purpose. The court must determine whether the sexually explicit material when viewed in the context of the whole work would be tolerated by the community as a whole. Any doubt in this regard must be resolved in favour of freedom of expression.

Section 163 of the Code seeks to prohibit certain types of expressive activity and thereby infringes s. 2(b) of the Charter. Activities cannot be excluded from the scope of the guaranteed freedom on the basis of the content or meaning being conveyed.

The infringement is justifiable under s. 1 of the Charter. Section 163(8), as interpreted in prior judgments and supplemented by these reasons, prescribes an intelligible standard. The overriding objective of s. 163 is not moral disapprobation but the avoidance of harm to society, and this is a sufficiently pressing and substantial concern to warrant a restriction on freedom of expression. One does not have to resort to the "shifting purpose" doctrine in order to identify the objective as the avoidance of harm to society. There is a sufficiently rational link between the criminal sanction, which demonstrates our community's disapproval of the dissemination of materials which potentially victimize women and restricts the negative influence which such materials have on changes in attitudes and behaviour, and the objective. While a direct link between obscenity and harm to society may be difficult to establish, it is reasonable to presume that exposure to images bears a causal relationship to changes in attitudes and beliefs. Section 163 of the Code minimally impairs freedom of expression. It does not proscribe sexually explicit erotica without violence that is not degrading or dehumanizing, but is designed to catch material that creates a risk of harm to society. Materials which have scientific, artistic or literary merit are not caught by the provision. Since the attempt to provide exhaustive instances of obscenity has been shown to be destined to fail, the only practical alternative is to strive towards a more abstract definition of obscenity which is contextually sensitive. The standard of "undue exploitation" is thus appropriate. Further, it is only the public distribution and exhibition of obscene materials which is in issue here. Given the gravity of the harm, and the threat to the values at stake, there is no alternative equal to the measure chosen by Parliament. Serious social problems such as violence against women require multi-pronged approaches by government; education and legislation are not alternatives but complements in addressing such problems. Finally, the effects of the law do not so severely trench on the protected right that the legislative objective is outweighed by the infringement.

Per L'Heureux-Dubé and Gonthier JJ.: Sopinka J.'s reasons were generally agreed with, subject to the following comments. The subject matter of s. 163 of the Code, obscene materials, comprises the dual elements of representation and content, and it is the combination of the two that attracts criminal liability. Obscenity is not limited to the acts prohibited in the Code: Parliament ascribed a broader content to it because it involves a representation. Obscenity leads to many ills. Obscene materials convey a distorted image of human sexuality, by making public and open elements of human nature that are usually hidden behind a veil of modesty and privacy. These materials are often evidence of the commission of reprehensible actions in their making, and can induce attitudinal changes which may lead to abuse and harm.

Parliament through s. 163 prohibits, and does not regulate, the circulation of obscene materials. In determining whether they are obscene, the impugned materials must therefore be presumed available to the Canadian public at large, since restrictions on availability are the result of regulatory measures which fall outside the purview of these provisions.

Explicit sex with violence will generally constitute undue exploitation of sex, and explicit sex that is degrading or dehumanizing will be undue if it creates a substantial risk of harm, as outlined by Sopinka J. Explicit sex that is neither violent nor degrading or dehumanizing may also come within the definition of obscene in s. 163(8). While the content of this category of materials is generally perceived as unlikely to cause harm, there are exceptions, such as child pornography. As well, it is quite conceivable that the representation may cause harm, even if its content as such is not seen as harmful. While the actual audience to which the materials are presented is not relevant, the manner of representation can greatly contribute to the deformation of sexuality, through the loss of its humanity, and make it socially harmful. The likelihood of harm, and the tolerance of the community, may vary according to the medium of representation, even if the content stays the same. The overall type or use of the representation may also be relevant. The assessment of the risk of harm here depends on the tolerance of the community. If the community cannot tolerate the risk of harm, then the materials, even though they may offer a non-violent, non-degrading, non-dehumanizing content, will constitute undue exploitation of sex and fall within the definition of obscenity.

Section 163 of the Code is aimed at preventing harm to society, a moral objective that is valid under s. 1 of the Charter. The avoidance of harm to society is but one instance of a fundamental conception of morality. In order to warrant an override of Charter rights the moral claims must be grounded; they must involve concrete problems such as life, harm and well-being, and not merely differences of opinion or taste. A consensus must also exist among the population on these claims. The avoidance of harm caused to society through attitudinal changes certainly qualifies as a fundamental conception of morality. It is well grounded, since the harm takes the form of violations of the principles of human equality and dignity.

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