R. v. Butler
Encyclopedia
R. v. Butler, [1992] 1 S.C.R. 452 is a leading Supreme Court of Canada
decision on pornography
and state censorship
. In this case, the Court had to balance the right to freedom of expression under section 2
of the Canadian Charter of Rights and Freedoms
with women's rights; the outcome has been described as a victory for anti-pornography
feminism
and the Women's Legal Education and Action Fund
, but a loss for alternative sexualities.
and confiscated the goods, and then charged Butler with possession and distribution of obscenity, crimes under section 163 (then section 159) of the Criminal Code of Canada
. 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 offense. 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.
had found that it would not, following the Supreme Court case Irwin Toy Ltd. v. Quebec (Attorney General)
(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.
The Supreme Court pointed to R. v. Keegstra
(1990) to say the obscenity laws violated freedom of expression. Keegstra demonstrated freedom of expression should be interpreted expansively, and in the Prostitution Reference
it was noted that whatever the message within the expression, the expression itself is protected by section 2.
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.
of the 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 R. v. Morgentaler
(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.
In asking whether the law could be demonstrably justified, the objective was considered, in accordance with R. v. Oakes
(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 Agreement for the Suppression of the Circulation of Obscene Publications and the Convention for the Suppression of the Circulation of and Traffic in Obscene Publications.
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 women were similar to hate speech
. 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 Parliament of Canada
on this matter.
The Court found the law to be proportional. The legislation did not outlaw non-degrading erotica
. Moreover, a vague definition of obscenity in the law was acceptable since politicians had had difficulty in drawing up comprehensive definitions. Making the obscenity public was criminalized while private materials may not be.
divided potentially obscene materials into three categories:
1. Explicit sex with violence;
2. Explicit sex without violence, but which subjects participants to treatment that is degrading or dehumanizing; and
3. Explicit sex without violence that is neither degrading nor dehumanizing.
Violence in this context was consider to include "both actual physical violence and threats of physical violence."
Justice John Sopinka
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 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 Criminal Code of Canada
.
The court also provided for an exception for materials of artistic merit.
This framework for analysis was re-affirmed by the Supreme Court of Canada
in Little Sisters Book and Art Emporium v. Canada (Minister of Justice)
(2000) applied the Butler method of analysis of pornography to homosexual pornography. Critics of Butler argued that the test failed to recognize pornography that promotes equality of homosexuals. However, the Supreme Court replied that "This line of criticism underestimates Butler." Butler 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 [recognized in Butler] relates to harm not taste."
In R. v. Labaye
(2005), the Supreme Court considered clubs in which group sex
occurred. The majority cited Butler 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 Butler.
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
decision on pornography
Pornography
Pornography or porn is the explicit portrayal of sexual subject matter for the purposes of sexual arousal and erotic satisfaction.Pornography may use any of a variety of media, ranging from books, magazines, postcards, photos, sculpture, drawing, painting, animation, sound recording, film, video,...
and state censorship
Censorship
thumb|[[Book burning]] following the [[1973 Chilean coup d'état|1973 coup]] that installed the [[Military government of Chile |Pinochet regime]] in Chile...
. In this case, the Court had to balance the right to freedom of expression under section 2
Section Two of the Canadian Charter of Rights and Freedoms
Section Two of the Canadian Charter of Rights and Freedoms is the section of the Constitution of Canada's Charter of Rights that lists what the Charter calls "fundamental freedoms" theoretically applying to everyone in Canada, regardless of whether they are a Canadian citizen, or an individual or...
of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
with women's rights; the outcome has been described as a victory for anti-pornography
Anti-pornography movement
The term anti-pornography movement is used to describe those who argue that pornography has a variety of harmful effects, such as encouragement of human trafficking, desensitization, pedophilia, dehumanization, sexual exploitation, sexual dysfunction, and inability to maintain healthy sexual...
feminism
Feminism
Feminism is a collection of movements aimed at defining, establishing, and defending equal political, economic, and social rights and equal opportunities for women. Its concepts overlap with those of women's rights...
and the Women's Legal Education and Action Fund
Women's Legal Education and Action Fund
Women's Legal Education and Action Fund, referred to by the acronym LEAF, is a Canadian legal organization that performs legal research and intervenes in appellate and Supreme Court of Canada cases on women's issues...
, but a loss for alternative sexualities.
Background
The case involved one Donald Victor Butler, who owned a store called Avenue Video Boutique on Main Street in Winnipeg. The business began in August 1987, handled pornographic videos and magazines and sexual objects. On August 21, the police arrived with a search warrantSearch warrant
A search warrant is a court order issued by a Magistrate, judge or Supreme Court Official that authorizes law enforcement officers to conduct a search of a person or location for evidence of a crime and to confiscate evidence if it is found....
and confiscated the goods, and then charged Butler with possession and distribution of obscenity, crimes under section 163 (then section 159) of the Criminal Code of Canada
Criminal Code of Canada
The Criminal Code or Code criminel is a law that codifies most criminal offences and procedures in Canada. Its official long title is "An Act respecting the criminal law"...
. 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 offense. 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.
Freedom of expression
The Court found laws against obscenity would breach freedom of expression. The Manitoba Court of AppealManitoba Court of Appeal
The Manitoba Court of Appeal is the highest Court of Appeal in the Canadian province of Manitoba. It was established in 1906. It is located in the Old Law Courts building at 408 York Avenue in Winnipeg, the capital city of Manitoba...
had found that it would not, following the Supreme Court case Irwin Toy Ltd. v. Quebec (Attorney General)
Irwin Toy Ltd. v. Quebec (Attorney General)
Irwin Toy Ltd. v. Quebec , [1989] 1 S.C.R. 927 is a landmark Supreme Court of Canada decision on freedom of expression in section 2 of the Canadian Charter of Rights and Freedoms...
(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.
The Supreme Court pointed to R. v. Keegstra
R. v. Keegstra
R. v. Keegstra, [1990] 3 S.C.R. 697 is a landmark freedom of expression decision of the Supreme Court of Canada where the Court upheld the Criminal Code of Canada provision prohibiting the wilful promotion of hatred against an identifiable group as constitutional under the freedom of expression...
(1990) to say the obscenity laws violated freedom of expression. Keegstra demonstrated freedom of expression should be interpreted expansively, and in the Prostitution Reference
Prostitution Reference
Reference re ss. 193 & 195.1 of Criminal Code , , [1990] 1 S.C.R. 1123 is a decision of the Supreme Court of Canada on the right to freedom of expression under section 2 of the Canadian Charter of Rights and Freedoms, and on prostitution in Canada...
it was noted that whatever the message within the expression, the expression itself is protected by section 2.
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.
Reasonable limits
The Court then turned to the question of whether the infringement of section 2 could be justified under section 1Section One of the Canadian Charter of Rights and Freedoms
Section One of the Canadian Charter of Rights and Freedoms is the section of the Charter that confirms that the rights listed in that document are guaranteed. The section is also known as the reasonable limits clause or limitations clause, as it legally allows the government to limit an...
of the 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 R. v. Morgentaler
R. v. Morgentaler
R. v. Morgentaler [1988] 1 S.C.R. 30 was a decision of the Supreme Court of Canada wherein the abortion provision in the Criminal Code of Canada was found to be unconstitutional, as it violated a woman's right under section 7 of the Canadian Charter of Rights and Freedoms to "security of person"...
(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.
In asking whether the law could be demonstrably justified, the objective was considered, in accordance with R. v. Oakes
R. v. Oakes
R. v. Oakes [1986] 1 S.C.R. 103 is a case decided by the Supreme Court of Canada which established the famous Oakes test, an analysis of the limitations clause of the Canadian Charter of Rights and Freedoms that allows reasonable limitations on rights and freedoms through legislation if it can be...
(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 Agreement for the Suppression of the Circulation of Obscene Publications and the Convention for the Suppression of the Circulation of and Traffic in Obscene Publications.
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 women were similar to hate speech
Hate speech
Hate speech is, outside the law, any communication that disparages a person or a group on the basis of some characteristic such as race, color, ethnicity, gender, sexual orientation, nationality, religion, or other characteristic....
. 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 Parliament of Canada
Parliament of Canada
The Parliament of Canada is the federal legislative branch of Canada, seated at Parliament Hill in the national capital, Ottawa. Formally, the body consists of the Canadian monarch—represented by her governor general—the Senate, and the House of Commons, each element having its own officers and...
on this matter.
The Court found the law to be proportional. The legislation did not outlaw non-degrading erotica
Erotica
Erotica are works of art, including literature, photography, film, sculpture and painting, that deal substantively with erotically stimulating or sexually arousing descriptions...
. Moreover, a vague definition of obscenity in the law was acceptable since politicians had had difficulty in drawing up comprehensive definitions. Making the obscenity public was criminalized while private materials may not be.
Framework for Analysis
To simplify the analysis Justice John SopinkaJohn Sopinka
John Sopinka, QC was a Canadian lawyer and puisne justice on the Supreme Court of Canada, the first Ukrainian-Canadian appointed to the high court....
divided potentially obscene materials into three categories:
1. Explicit sex with violence;
2. Explicit sex without violence, but which subjects participants to treatment that is degrading or dehumanizing; and
3. Explicit sex without violence that is neither degrading nor dehumanizing.
Violence in this context was consider to include "both actual physical violence and threats of physical violence."
Justice John Sopinka
John Sopinka
John Sopinka, QC was a Canadian lawyer and puisne justice on the Supreme Court of Canada, the first Ukrainian-Canadian appointed to the high court....
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 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 Criminal Code of Canada
Criminal Code of Canada
The Criminal Code or Code criminel is a law that codifies most criminal offences and procedures in Canada. Its official long title is "An Act respecting the criminal law"...
.
The court also provided for an exception for materials of artistic merit.
This framework for analysis was re-affirmed by the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
in Little Sisters Book and Art Emporium v. Canada (Minister of Justice)
Little Sisters Book and Art Emporium v. Canada (Minister of Justice)
Little Sisters Book and Art Emporium v. Canada [2000] 2 S.C.R. 1120, 2000 SCC 69 is a leading Supreme Court of Canada decision on freedom of expression and equality rights under the Canadian Charter of Rights and Freedoms...
Aftermath
The decision has had an impact on other cases involving pornography and other alleged forms of indecency. The case Little Sisters Book and Art Emporium v. Canada (Minister of Justice)Little Sisters Book and Art Emporium v. Canada (Minister of Justice)
Little Sisters Book and Art Emporium v. Canada [2000] 2 S.C.R. 1120, 2000 SCC 69 is a leading Supreme Court of Canada decision on freedom of expression and equality rights under the Canadian Charter of Rights and Freedoms...
(2000) applied the Butler method of analysis of pornography to homosexual pornography. Critics of Butler argued that the test failed to recognize pornography that promotes equality of homosexuals. However, the Supreme Court replied that "This line of criticism underestimates Butler." Butler 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 [recognized in Butler] relates to harm not taste."
In R. v. Labaye
R. v. Labaye
R. v. Labaye, [2005] 3 S.C.R. 728, 2005 SCC 80, was a decision by the Supreme Court of Canada on criminal indecency. The decision upheld consensual group sex and swinging activities in a club and alleged bawdy-house as being consistent with personal autonomy and liberty. Labaye was accompanied by...
(2005), the Supreme Court considered clubs in which group sex
Group sex
Group sex is sexual behavior involving more than two participants. Group sex can occur amongst people of all sexual orientations and genders...
occurred. The majority cited Butler 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 Butler.
See also
- List of Supreme Court of Canada cases (Lamer Court)
- R. v. Glad Day Bookshops Inc.R. v. Glad Day Bookshops Inc.R. v. Glad Day Bookshops Inc., is a leading Ontario Superior Court of Justice decision on pornography and homosexuality. The court found that a statutory scheme requiring the approval of the Ontario Film Review Board before films can be distributed or shown in Ontario violated the guarantee of...
- American Booksellers v. HudnutAmerican Booksellers v. HudnutAmerican Booksellers v. Hudnut, 771 F.2d 323 , aff'd mem., 475 U.S. 1001 , was a 1985 court case that challenged the constitutionality of the Antipornography Civil Rights Ordinance, as enacted in Indianapolis, Indiana.- Background :...
, 771 F.2d 323Case citationCase citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(7th Cir. 1985), aff'd mem., 475 U.S. 1001 (1986), an American case that reached the opposite result.
Further Reading
- Waltman, Max. 2010. "Rethinking Democracy: Legal Challenges to Pornography and Sex Inequality in Canada and the United States," Political Research Quarterly, vol. 63, no. 1 (2010): 218-237 (including podcast with PRQ co-editor Amy Mazur, Catharine MacKinnon, Kathleen Mahoney, William Hudnut, and Max Waltman).
- MacKinnon, Catharine A. 2007. Sex equality. 2nd ed. New York: Foundation Press (commenting Butler; chap. 10).
- Kendall, Christopher. 2004. Gay male pornography: An issue of sex discrimination. Vancouver: UBC Press.
- Nowlin, Christopher. 2003. Judging Obscenity: A Critical History of Expert Evidence. Quebec: McGill-Queen's University Press.
- Women’s Legal Education and Action Fund (LEAF). 1996. Equality and the Charter: Ten Years of Feminist Advocacy Before the Supreme Court of Canada. Montgomery CA: Emond Montgomery (Submitted "Factum" [amici brief] in Butler).
- Mahoney, Kathleen E. 1997. "Freedom of expression: Hate propaganda, pornography and section 1 of the Charter." In Canadian constitutional dilemmas revisited, eds. Denis N. Magnusson and Daniel A. Soberman, 81-100. CAN: Institute of Intergovernmental Relations.
- Johnson, Kirsten. 1995. Undressing the Canadian state: The politics of pornography from Hicklin to Butler. Halifax: Fernwood Publ.
- Lacombe, Dany. 1994. Blue politics: Pornography and the law in the age of feminism. Toronto: University of Toronto Press.
- Taylor, Joan Kennedy. 1994. "Does Sexual speech harm women? The split within feminism." Stanford Law & Policy Review. 5 (Spring): 49-61 (commenting on Butler).
- Mahoney, Kathleen E. 1993. "Destruction of women’s rights through mass media: Proliferation of pornography." In Human rights in the twenty-first century: A global challenge, eds. Kathleen E. Mahoney and Paul Mahoney, 757-76. Dordrecht Neth.: Martinus Nijhoff.