R. v. Butler

R. v. Butler
Collection
Supreme Court Judgments
Date
1992-02-27
Report
[1992] 1 SCR 452
Case number
22191
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Stevenson, William; Iacobucci, Frank
On appeal from
Manitoba
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 22191
Decision Content
R. v. Butler, [1992] 1 S.C.R. 452
Donald Victor Butler Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada,
the Attorney General for Ontario,
the Attorney General of Quebec,
the Attorney General of British Columbia,
the Attorney General for Alberta,
Canadian Civil Liberties Association,
Manitoba Association for Rights and Liberties,
British Columbia Civil Liberties Association,
Women's Legal Education and Action Fund and
G.A.P. (Group Against Pornography) Inc. Interveners
Indexed as: R. v. Butler
File No.: 22191.
1991: June 6; 1992: February 27.
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.
Cases Cited
By Sopinka J.
Considered: Towne Cinema Theatres Ltd. v. The Queen, [1985] 1 S.C.R. 494; referred to: Dechow v. The Queen, [1978] 1 S.C.R. 951; Germain v. The Queen, [1985] 2 S.C.R. 241; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. Hicklin (1868), L.R. 3 Q.B. 360; R. v. Fringe Product Inc. (1990), 53 C.C.C. (3d) 422; Brodie v. The Queen, [1962] S.C.R. 681; R. v. Close, [1948] V.L.R. 445; R. v. Goldberg, [1971] 3 O.R. 323; R. v. Kiverago (1973), 11 C.C.C. (2d) 463; R. v. Cameron (1966), 58 D.L.R. (2d) 486; R. v. Duthie Books Ltd. (1966), 58 D.L.R. (2d) 274; R. v. Ariadne Developments Ltd. (1974), 19 C.C.C. (2d) 49; R. v. Sudbury News Service Ltd. (1978), 18 O.R. (2d) 428; R. v. Prairie Schooner News Ltd. (1970), 75 W.W.R. 585; R. v. Great West News Ltd., [1970] 4 C.C.C. 307; R. v. Dominion News & Gifts (1962) Ltd., [1963] 2 C.C.C. 103; R. v. Doug Rankine Co. (1983), 9 C.C.C. (3d) 53; R. v. Ramsingh (1984), 14 C.C.C. (3d) 230; R. v. Wagner (1985), 43 C.R. (3d) 318; R. v. Odeon Morton Theatres Ltd. (1974), 16 C.C.C. (2d) 185; Nova Scotia Board of Censors v. McNeil, [1978] 2 S.C.R. 662; R. v. Keegstra, [1990] 3 S.C.R. 697; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Red Hot Video Ltd. (1985), 45 C.R. (3d) 36; Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232; Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1972); R. v. Rioux, [1969] S.C.R. 599, [1970] 3 C.C.C. 149.
By Gonthier J.
Considered: Towne Cinema Theatres Ltd. v. The Queen, [1985] 1 S.C.R. 494; referred to: R. v. Wagner (1985), 43 C.R. (3d) 318; R. v. Doug Rankine Co. (1983), 9 C.C.C. (3d) 53; R. v. Ramsingh (1984), 14 C.C.C. (3d) 230; R. v. Sudbury News Service Ltd. (1978), 18 O.R. (2d) 428; Hawkshaw v. The Queen, [1986] 1 S.C.R. 668; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Handyside Case, judgment of 7 December 1976, Series A No. 24; Case of Müller and others, judgment of 24 May 1988, Series A No. 133; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. Keegstra, [1990] 3 S.C.R. 697.
Statutes and Regulations Cited
Act to amend the Criminal Code, S.C. 1949 (2nd Sess.), c. 13, s. 1.
Act to amend the Criminal Code, S.C. 1959, c. 41, s. 11.
Agreement for the Suppression of the Circulation of Obscene Publications, May 4, 1910, as amended by the Protocol of May 4, 1949, Can. T.S. 1951 No. 34.
Canadian Charter of Rights and Freedoms, ss. 1 , 2 (b), 28 .
Convention for the Suppression of the Circulation of and Traffic in Obscene Publications, September 12, 1923, as amended by the Protocol of November 12, 1947, Can. T.S. 1951, No. 33.
Criminal Code, R.S.C. 1970, c. C‑34, ss. 159(1)(a), (2)(a).
Criminal Code, R.S.C., 1985, c. C‑46, ss. 151 , 153 , 155 , 159 , 160 , 182 , 163(1) (a), (2) (a), (8) , 167 , 168 , 173 , 175 , 271 , 272 , 273 .
Criminal Code, S.C. 1953‑54, c. 51, s. 150.
Criminal Code, 1892, S.C. 1892, c. 29, s. 179.
European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222, art. 10.
Authors Cited
Australia. Parliament of the Commonwealth of Australia. Report of the Joint Select Committee on Video Material, vol. 1. Canberra: Australian Government Publishing Service, 1988.
Beckton, Clare. "Freedom of Expression (s. 2(b))". In The Canadian Charter of Rights and Freedoms : Commentary. Edited by Walter S. Tarnopolsky and Gérald‑A. Beaudoin. Toronto: Carswell, 1982.
Canada. House of Commons. Standing Committee on Justice and Legal Affairs. Report on Pornography. Issue No. 18 (March 22, 1978).
Canada. Special Committee on Pornography and Prostitution. Pornography and Prostitution in Canada: Report of the Special Committee on Pornography and Prostitution, vol. 1. Ottawa: Supply and Services, 1985.
Downs, Donald Alexander. The New Politics of Pornography. Chicago: University of Chicago Press, 1989.
Dworkin, Ronald. Taking Rights Seriously. London: Duckworth, 1977.
Dyzenhaus, David. "Obscenity and the Charter : Autonomy and Equality" (1991), 1 C.R. (4th) 367.
Gardbaum, Stephen A. "Why the Liberal State Can Promote Moral Ideals After All" (1991), 104 Harv. L. Rev. 1350.
Municipality of Metropolitan Toronto. Task Force on Public Violence Against Women and Children. Final Report. Toronto: The Task Force, 1984.
New Zealand. Ministerial Committee of Inquiry into Pornography. Pornography: Report of the Ministerial Committee of Inquiry into Pornography. Wellington: The Committee, 1988.
Oxford English Dictionary, 2nd ed., vol. XIII. Oxford: Clarendon Press, 1989, "represent", "representation".
United States. Attorney General's Commission on Pornography. Final Report, vol. 1. Washington, D.C.: U.S. Department of Justice, 1986.
APPEAL from a judgment of the Manitoba Court of Appeal (1990), 60 C.C.C. (3d) 219, [1991] 1 W.W.R. 97, 1 C.R. (4th) 309, allowing the Crown's appeal from the accused's acquittals by Wright J. (1989), 60 Man. R. (2d) 82, 50 C.C.C. (3d) 97, [1989] 6 W.W.R. 35, 72 C.R. (3d) 18, 46 C.R.R. 124, on obscenity charges. Appeal allowed.
George A. Derwin, for the appellant.
V. E. Toews and Robert Morrison, for the respondent.
Bernard Laprade, for the intervener the Attorney General of Canada.
David B. Butt, for the intervener the Attorney General for Ontario.
Jacques Gauvin, for the intervener the Attorney General of Quebec.
Frank A. V. Falzon, for the intervener the Attorney General of British Columbia.
No one appeared for the intervener the Attorney General for Alberta.
Sheila Block, for the interveners the Canadian Civil Liberties Association and Manitoba Association for Rights and Liberties.
Joseph J. Arvay, Q.C., for the intervener British Columbia Civil Lberties Association.
Kathleen E. Mahoney and Linda A. Taylor, for the intervener Women's Legal Education and Action Fund.
David G. Newman, for the intervener G.A.P. (Group Against Pornography) Inc.
//Sopinka J.//
The judgment of Lamer C.J. and La Forest, Sopinka, Cory, McLachlin, Stevenson and Iacobucci was delivered by
Sopinka J. -- This appeal calls into question the constitutionality of the obscenity provisions of the Criminal Code, R.S.C., 1985, c. C‑46, s. 163 . They are attacked on the ground that they contravene s. 2 (b) of the Canadian Charter of Rights and Freedoms . The case requires the Court to address one of the most difficult and controversial of contemporary issues, that of determining whether, and to what extent, Parliament may legitimately criminalize obscenity. I propose to begin with a review of the facts which gave rise to this appeal, as well of the proceedings in the lower courts.
1. Facts and Proceedings
In August 1987, the appellant, Donald Victor Butler, opened the Avenue Video Boutique located in Winnipeg, Manitoba. The shop sells and rents "hard core" videotapes and magazines as well as sexual paraphernalia. Outside the store is a sign which reads:
"Avenue Video Boutique; a private members only adult video/visual club.
Notice: if sex oriented material offends you, please do not enter.
No admittance to persons under 18 years.
On August 21, 1987, the City of Winnipeg Police entered the appellant's store with a search warrant and seized all the inventory. The appellant was charged with 173 counts in the first indictment: three counts of selling obscene material contrary to s. 159(2)(a) of the Criminal Code, R.S.C. 1970, c. C‑34 (now s. 163(2) (a)), 41 counts of possessing obscene material for the purpose of distribution contrary to s. 159(1)(a) (now s. 163(1) (a)) of the Criminal Code , 128 counts of possessing obscene material for the purpose of sale contrary to s. 159(2) (a) of the Criminal Code and one count of exposing obscene material to public view contrary to s. 159(2) (a) of the Criminal Code .
On October 19, 1987, the appellant reopened the store at the same location. As a result of a police operation a search warrant was executed on October 29, 1987, resulting in the arrest of an employee, Norma McCord. The appellant was arrested at a later date.
A joint indictment was laid against the appellant doing business as Avenue Video Boutique and Norma McCord. The joint indictment contains 77 counts under s. 159 (now s. 163 ) of the Criminal Code : two counts of selling obscene material contrary to s. 159(2) (a), 73 counts of possessing obscene material for the purpose of distribution contrary to s. 159(1) (a), one count of possessing obscene material for the purpose of sale contrary to s. 159(2) (a) and one count of exposing obscene material to public view contrary to s. 159(2) (a).
The trial judge convicted the appellant on eight counts relating to eight films. Convictions were entered against the co‑accused McCord with respect to two counts relating to two of the films. Fines of $1,000 per offence were imposed on the appellant. Acquittals were entered on the remaining charges.
The Crown appealed the 242 acquittals with respect to the appellant and the appellant cross‑appealed the convictions. The majority of the Manitoba Court of Appeal allowed the appeal of the Crown and entered convictions for the appellant with respect to all of the counts, Twaddle and Helper JJ.A. dissenting.
Court of Queen's Bench (1989), 50 C.C.C. (3d) 97
Wright J. first considered whether the materials were obscene within the meaning of s. 163(8) of the Criminal Code . He noted that Canadian courts have interpreted the application of the "community standards" test to mean that as long as the trier of fact does not apply his or her subjective personal views but seeks objectively to ascertain the community standard, he or she may resolve that issue simply by drawing on his or her "experience". Wright J. expressed serious difficulties in applying the community standards test, stating that to render a factual decision on the basis of experience is contrary to the judicial role and that he regards his own views drawn from his "experience" to be unreliable. However, Wright J. was able to conclude on the basis of previous case law that the materials in question were obscene (at p. 113):
In the context of my own inability to confidently draw on my experience, and my belief, in any event, that it is incongruous and inconsistent with basic judicial legal principles to do so, normally I would be inclined to hold that the requisite community standard of tolerance has not been proved as an essential ingredient of the Crown's case and all the charges should be dismissed.
However, it is clear, from a review of the case‑law binding on me that independent of the manner in which a trial judge is directed to measure obscenity, material of the kind before the court has been well established as obscene and must continue to be regarded as obscene within the Criminal Code definition.
Applying the Canadian decisions on obscenity since the inclusion of s. 163 in the Criminal Code , Wright J. found that there was no doubt that the videos and magazines in the present case fall into the category of "hard porn" and that the sexual devices are similar to the kind of sexual paraphernalia held by this Court in Dechow v. The Queen, [1978] 1 S.C.R. 951, and Germain v. The Queen, [1985] 2 S.C.R. 241, to fall under the obscenity definition. Accordingly, he found that all of the materials referred to in the various charges in the indictments are obscene according to the case law interpretation of s. 163(8) .
Wright J. then concluded that the obscene material was protected by s. 2 (b) of the Charter . Following the principles in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, he noted that obscene expression reflected in the material certainly conveys meaning and is entitled to protection provided the form of expression is not violent.
In conducting the s. 1 analysis, Wright J. was of the view that legislation which seeks to proscribe a fundamental freedom must have as its objective a more precise purpose than simply to control the morals of society or to encourage decency. He wrote, at p. 121:
The aim must be directed more specifically to objectives such as equality concerns, or other Charter rights, or particular human rights; otherwise, the basic freedoms in the Charter will be subject to restrictions that arise from very personal and subjective opinions of right and wrong that will be impossible to identify . . . .
Examples of more precise aims or bases for restrictions will be:
(1)The protection of people from involuntary exposure to pornographic material;
(2)the protection of the vulnerable, for example children, from either exposure or participation;
(3)the prevention of the circulation of pornographic material that effectively reduces the human or equality or other Charter rights of individuals. This may arise, and often will arise, in material that mixes sex with violence or cruelty, or otherwise dehumanizes women or men.
Applying these standards, he concluded that on a prima facie basis, 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 . With respect to the material and sexual devices covered by the remaining counts he said, at pp. 124-25:
The material covered by the remaining counts in the indictments, relating to the magazines and the videos, reflects consensual activity by adult individuals not involving force, duress or cruelty. In this context, I am unable to conclude that the depiction of the human body or any of its parts, no matter how explicitly presented, or the visual presentation of masturbation, group sex or other heterosexual or homosexual activity, including incestuous relations, prima facie relate to sufficiently specific concerns which are pressing and substantial in a free and democratic society to justify restricting or limiting the basic freedom permitting them to be expressed. The same reasoning applies in respect of the material before the court described as sexual toys or devices. The Crown has failed to bring forward cogent and persuasive evidence to demonstrate the specific objectives sought to be achieved, and to show that such objectives justify the limits on freedom of expression which the impugned legislation seeks to bring about.
In reaching his conclusion, Wright J. decided the definition set forth in s. 163(8) is not on its face in contravention of the Charter although it can be interpreted to cover more ground than the Charter provisions would permit in the context of the evidence. He stated as to the appropriate remedy (at p. 125):
If the interpretation places the section in conflict with the Charter and the evidence required to permit the broader scope of the section to stand is lacking, then the remedy is simply to hold that the Charter provisions are paramount. It is not necessary to strike down the Criminal Code provision as unconstitutional.
Wright J. held that the videotapes identified in 16 of the counts contained material that has been legitimately proscribed according to the requirements of s. 1 of the Charter . These 16 counts related to eight films. In most cases, the appellant was charged with possession for the purpose of sale on the one hand and possession for the purpose of distribution or circulation on the other. Wright J. therefore entered eight convictions against the appellant, one with respect to each pair of charges covering similar content.
Manitoba Court of Appeal (1990), 60 C.C.C. (3d) 219
Huband J.A. (O'Sullivan and Lyon JJ.A. concurring)
Huband J.A., speaking for the majority, first noted that the approach taken by the trial judge was incorrect in that he focused the s. 1 inquiry on the individual films rather than on s. 163 of the Criminal Code . Counsel for both parties also agreed that the trial judge had misdirected himself in judging the materials rather than the provision.
With respect to Wright J.'s finding that all of the materials in question were obscene, Huband J.A. noted that no serious argument was made that this finding was wrong and concluded that it should not be interfered with.
Huband J.A. then considered whether s. 163 contravenes s. 2 (b) of the Charter . Based on their content, he concluded that the materials in this case constitute "purely physical" activity which does not convey or attempt to convey meaning. Huband J.A. also noted that the form of expression also fell outside the protection of the Charter , as it consists in the undue exploitation of sex and the degradation of human sexuality. In his view, the form of the activity is not one which the Charter was designed or intended to protect.
With respect to the purpose and effect of s. 163 , Huband J.A. stated (at pp. 230-31):
The intent of the legislation is to bar the distribution or sale of prurient materials devoid of a redeeming meaning. As to effect, on the evidence in this case it does not appear that the obscenity provisions in the Code have thwarted or subverted anyone in conveying or attempting to convey a meaningful message.
Accordingly, the majority did not consider it necessary to pursue a s. 1 inquiry.
Twaddle J.A., dissenting
First, Twaddle J.A. noted that we are not concerned in the present case with the form of expression but with its content. In his view, the content of a video movie, the content of a magazine and the imagery of a sexual gadget are all within the scope of freedom of expression. Any limit on their creation, publication or distribution must be reasonable and demonstrably justified in a free and democratic society.
Before proceeding to the s. 1 analysis, Twaddle J.A. expressed the opinion that s. 163(8) envisages two distinct offences with different objectives, and that each offence should be considered separately for constitutional validity. Twaddle J.A. was of the view that the portion of s. 163 dealing with the "undue exploitation of sex" is concerned with the maintenance of moral standards, while the concept of sex coupled with one or more of crime, horror, cruelty and violence is aimed at harm. While the avoidance of harm is universally accepted as a legitimate goal, he concluded that a law which is aimed at deciding for someone else what he may read or view is discordant with the principles integral to a free and democratic society.
Twaddle J.A. decided that taken as an undivided proscription, s. 163 does not focus on achieving a single purpose (at pp. 246-47):
Although there are several important purposes which it serves, the proscription is overbroad and unrefined. It disables those who wish to see sexually explicit movies from seeing those movies which, harmless in themselves, are deemed too "dirty" to be tolerated by the community . . . .
If the proscription is divided into two, however, the proscription against the undue exploitation of sex coupled with one or more of crime, horror, cruelty and violence has the pressing and substantial purpose of avoiding the risk of harm and that purpose is achieved without sacrificing freedom of expression more than is necessary to achieve it.
He was of the view that Parliament was entitled to have a reasoned apprehension of harm resulting from the desensitization of individuals exposed to books or movies which portray sex with any dehumanizing feature. In this respect, he found the limit on the Charter freedom justified because of the importance of avoiding indifference to violence in so far as women are concerned, and the dehumanization of people. Therefore, Twaddle J.A. severed the two proscriptions and held the proscription of publications which "unduly exploit sex" alone to be invalid. Since the trial judge arrived at the same result and convicted only where the materials unduly exploit sex coupled with cruelty, violence or other dehumanizing features, Twaddle J.A. would have dismissed both the appeals of the Crown and of the accused.
Helper J.A., dissenting
Helper J.A. also found that the materials in this case are protected by s. 2 (b) of the Charter . She stressed that the degree of offensiveness of the materials cannot be the criterion for determining whether or not the expression comes within the meaning of s. 2 (b) of the Charter .
In determining whether the infringement of freedom of expression is justified under s. 1 , Helper J.A. was of the view that it is a legitimate objective of Parliament to prevent the publication and circulation of materials depicting cruelty, dehumanization, degradation and violence. In her view, the evidence shows the circulation of such material may lead to an increase in the incidence of aggressive, harmful behaviour and further can lead to attitudinal changes that are antithetical to the Charter , specifically to its s. 28 . Helper J.A. rejected the trial judge's determination that morality is not a sufficient basis for imposing limitations on fundamental freedoms. In her view, morality in the broader sense, as in the present case, encompassing respect for human beings, protection of the public generally or of vulnerable individuals or groups of the public from harm is a sufficiently pressing and substantial objective warranting the intervention of Parliament.
However, Helper J.A. found that s. 163 was too vague to pass the remainder of the s. 1 test. She stated, at p. 266:
. . . Parliament chose the terminology "undue exploitation of sex" in s. 163(8) and by so doing left the criteria for the application of the standard to the judiciary. It is not the judicial function to define the material or actions which are to be proscribed by law. Parliament has abdicated its responsibility in s. 163 of the Code. The present law which fails to define with precision the limit on sexual expression is too arbitrary and too vague to withstand the scrutiny of s. 1 .
Helper J.A. also concluded that the legislation failed the proportionality test in that it was overreaching and did not impair freedom of expression as little as possible, as it could result in the conviction of one who deals in material containing no element of cruelty, dehumanization, violence or degradation and in the absence of any evidence of harm or risk of harm to society. Having concluded that s. 163(8) does not constitute a reasonable limit under s. 1 , Helper J.A. would have allowed the appeals against conviction and entered acquittals on all charges against both accused.
2. Relevant Legislation
Criminal Code, R.S.C., 1985, c. C‑46
163. (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 thing whatever; or
(b) makes, prints, publishes, distributes, sells or has in his possession for the purpose of publication, distribution or circulation a crime comic.
(2) Every one commits an offence who knowingly, without lawful justification or excuse,
(a) sells, exposes to public view or has in his possession for such a purpose any obscene written matter, picture, model, phonograph record or other thing whatever;
(b) publicly exhibits a disgusting object or an indecent show;
(c) offers to sell, advertises or publishes an advertisement of, or has for sale or disposal, any means, instructions, medicine, drug or article intended or represented as a method of causing abortion or miscarriage; or
(d) advertises or publishes an advertisement of any means, instructions, medicine, drug or article intended or represented as a method for restoring sexual virility or curing venereal diseases or diseases of the generative organs.
(3) No person shall be convicted of an offence under this section if he establishes that the public good was served by the acts that are alleged to constitute the offence and that the acts alleged did not extend beyond what served the public good.
(4) For the purposes of this section, it is a question of law whether an act served the public good and whether there is evidence that the act alleged went beyond what served the public good, bur it is a question of fact whether the acts did or did not extend beyond what served the public good.
(5) For the purposes of this section, the motives of an accused are irrelevant.
(6) Where an accused is charged with an offence under subsection (1), the fact that the accused was ignorant of the nature or presence of the matter, picture, model, phonograph record, crime comic or other thing by means of or in relation to which the offence was committed is not a defence to the charge.
(7) In this section, "crime comic" means a magazine, periodical or book that exclusively or substantially comprises matter depicting pictorially
(a) the commission of crimes, real or fictitious; or
(b) events connected with the commission of crimes, real or fictitious, whether occurring before or after the commission of the crime.
(8) For the purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene.
3. Issues
The following constitutional questions are raised by this appeal:
1. Does s. 163 of the Criminal Code of Canada, R.S.C., 1985, c. C‑46 , violate s. 2 (b) of the Canadian Charter of Rights and Freedoms ?
2. If s. 163 of the Criminal Code of Canada, R.S.C., 1985, c. C‑46 , violates s. 2 (b) of the Canadian Charter of Rights and Freedoms , can s. 163 of the Criminal Code of Canada be demonstrably justified under s. 1 of the Canadian Charter of Rights and Freedoms as a reasonable limit prescribed by law?
4. Analysis
The constitutional questions, as stated, bring under scrutiny the entirety of s. 163 . However, both lower courts as well as the parties have focused almost exclusively on the definition of obscenity found in s. 163(8) . Other portions of the impugned provision, such as the reverse onus provision envisaged in s. 163(3) as well as the absolute liability offence created by s. 163(6), raise substantial Charter issues which should be left to be dealt with in proceedings specifically directed to these issues. In my view, in the circumstances, this appeal should be confined to the examination of the constitutional validity of s. 163(8) only.
Before proceeding to consider the constitutional questions, it will be helpful to review the legislative history of the provision as well as the extensive judicial interpretation and analysis which have infused meaning into the bare words of the statute.
A. Legislative History
Parliament's first attempt to criminalize obscenity was in s. 179 of the Criminal Code, 1892, S.C. 1892, c. 29, which provided in part as follows:
179. Every one is guilty of an indictable offence and liable to two years' imprisonment who knowingly, without lawful justification or excuse --
(a.) publicly sells, or exposes for public sale or to public view, any obscene book, or other printed or written matter, or any picture, photograph, model or other object, tending to corrupt morals; or
(b.) publicly e