R v. Butler
is a case that came before the Supreme Court of Canada
in 1992. In it, the Court upheld legislation
prohibiting the distribution of "obscene
" materials. The Court found that it would be impermissible to censor
materials on the grounds that they are offensive, but concluded that prohibiting "degrading or dehumanizing" pornography
is justified in preventing harm (particularly harm to women
). This was ruled to be a justifiable limit of freedom of expression
The details of the case are as follows: Section 163 of the Criminal Code of Canada prohibits the sale and/or display of materials that are "obscene." The defendant, Donald Victor Butler, was arrested for multiple violations of Section 163 in August of 1987. The argument put forward by the defence claimed that Section 163 was a violation of Section 2(b) of the Canadian Charter of Rights and Freedoms, which guarantees freedom of expression.
Section 163(8) of the Criminal Code reads:
"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."
Section 2 of the Canadian Charter of Rights and Freedoms reads:
"Everyone has the following freedoms:
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication."
Section 1 of the Canadian Charter of Rights and Freedoms reads:
"The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
While the provisions concerning crime, horror, cruelty, and violence are fairly self-explanatory, the term "undue exploitation of sex" is still somewhat subjective. In Butler, the Court examines some of the tests that have been used in previous obscenity cases to determine what kind of materials consititute, from a legal standpoint, an undue exploitation of sex.
"Community Standard of Tolerance" Test
The Court cites the argument made previously in R v. Close (1948) that
"There exists in any community at all times - however the standard may vary from time to time - general instinctive sense of what is decent and what is indecent, what is clean and what is dirty, and when the distinction has to be drawn." (p. 705)
However, the Court then refines this in terms of more contemporary arguments, such as that made in Towne Cinema Theatres Ltd. v. The Queen (1985):
"The cases all emphasize that it is a standard of tolerance, not taste, that is relevant. What matters is not what Canadians think is right for themselves to see. What matters is what Canadians would not abide other Canadians seeing because it would be beyond the contemporary Canadian standard of tolerance to allow them to see it." (p. 508)
The Court then qualifies this concept of tolerance in terms of the "Degradation or Dehumanization" Test.
"Degradation or Dehumanization" Test
As Sopinka J, speaking for the majority in Butler, says:
"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..." (p. 478)
The Court defines "degrading or dehumanizing" material as including "subordination, servile submission, or humiliation." The Court finds that this type of material fails the community standards test not because it offends against moral sensibilities, but rather because it has a harmful effect on society, and women in particular. Significantly, the Court also finds that there is no necessary connection between whether material is tolerated and whether it causes harm to members of society, and notes that in these cases, it is the consideration of harm that is the more important of the two. That is, the primary consideration is not the opinions of the community, but whether or not the material actually has a harmful impact on some members of society. The Court also ruled that, while is difficult to describe and prove the existence of an exact connection between this type of pornography and specific harms, it is enough that the community has reason to believe that this type of pornography is harmful.
"Internal Necessities Test" or "Artistic Defense":
The Court notes that material that would normally fail one or more of the above tests is sometimes necessary for the serious treatment of real issues. In these cases, the depiction of sex is justified under the law.
In deciding how to apply these tests, the Court divides pornography into three categories:
(1) Explicit sex with violence
(2) Explicit sex without violence, but with degrading or dehumanizing elements
(3) Explicit sex without degrading or dehumanizing elements
While recognizing that there may be disagreement as to which, if any, of these three categories are harmful, the Court characterizes harmful material in this context to be material that "predisposes persons to act in an anti-social manner, as, for example, the physical or mental mistreatment of women by men, or, what is perhaps debatable, the reverse." The Court notes that the first category is expressly mentioned in the law, and so will almost always be considered undue. The second category may be considered undue, if there is found to be a significant risk of harm. The third category is never undue, unless it involves children. Finally, any materials that are found to be harmful under these three categorizations may be redeemed by the internal necessities test.
The Supreme Court disagreed with the Court of Appeals that had previously ruled on this case, in finding that s. 168 of the Criminal Code does violate section 2(b) of the Charter. The Court notes that the media of expression are not in and of themselves violent, and that section 2(b) of the Charter specifically guarantees the freedom of such media. However, this guarantee is subject to "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." This means that it remains for the Court to examine whether this law is a reasonable limit.
A Section 1 analyis (that is, the jurisprudence that has been established in order to test whether a piece of legislation is a reasonable limit under Section 1 of the Charter) involves first showing that there is a valid legislative objective associated with the law, and subsequently showing that the law meets the three requirements of proportionality:
(1) That there is a rational connection between the law and the problem being addressed;
(2) That the law minimally impairs the freedoms guaranteed in Section 2 of the Charter;
(3) That the harm prevented by the law is equal to or greater than the harm caused by the impairment of the freedoms guaranteed in Section 2.
Valid Legislative Objective
The Court accepts that the apprehension of harm caused by degrading or dehumanizing pornography is a valid reason for prohibiting its sale and/or display. In particular, the Court quotes the Report on Pornography by the Standing Committee on Justice and Legal Affairs (MacGuigan Report) (1978):
"The clear and unquestionable danger of this type of material is that it reinforces some unhealthy tendencies in Canadian society. The effect of this type of material is to reinforce male-female stereotypes to the detriment of both sexes. It attempts to make degradation, humiliation, victimization, and violence in human relationships appear normal and acceptable. A society which holds that egalitarianism, non-violence, consensualism, and mutuality are basic to any human interaction, whether sexual or other, is clearly justified in controlling and prohibiting and medium of depiction, description or advocacy which violates these principles."
Having accepted that the dissemination of degrading or dehumanzing pornography has a harmful effect on society, the Court concludes that prohibiting the sale and/or display of such material can in fact be expected to decrease this harm.
The Court looks at the legislation from many angles in determining that it only minimally impairs freedom of expression. Firstly, the Court's three tests of whether the exploitation of sex is "undue" acts to ensure that any material censored by this legislation is both harmful and without artistic or politically expressive content. Secondly, the Court notes that previous failures in trying to apply a rigid definition of obscenity make it reasonable for the law to include a definition that is context-sensitive. Thirdly, the law in question only deals with public sale and/or display; the Court has previously ruled that the law is held not to apply to private viewings of obscene material.
Finally, the Court considers the argument made by the Canadian Civil Liberties Association, which suggests that alternate approaches to the problem should be taken. Having accepted that harm in the form of degradation results from the dissemination of these materials, the Court rules that less intrusive measures, such as time and place restrictions, could be justified without hypocrisy. Also, the Court acknowledges that social intervention (for example, counselling rape victims to prosecute their attackers) also has a positive effect in reducing inequity; however, the Court rules that there is no reason why the government shouldn't use every resource in its power to combat these problems.
In weighing the benefits of this legislation against its costs, the Court states that, in light of the Internal Necessities test, the only type of speech affected by this legislation is that dealing with personal gratification - in particular, political and artistic speech are excluded. By contrast, the direct and indirect consequences of degrading pornography violate one of the most central tenets of the Charter; namely, the fundamental equality of all human beings.
On these grounds, the Court finally concluded that section 168 was a justifiable limit prescribed by law. The jurisprudence of Butler is used in all cases involving section 168; this jurisprudence has been criticized for several reasons. Most significantly, there is considerable evidence to suggest that, despite the Court's stated aims of reducing inequality and avoid the degradation of woman and the hands of men, section 168 has been used in many cases to prosecute stores selling gay and lesbian pornography. Since Butler, the Court has in fact lent some weight to this argument, by ruling that certain sections of Canadian customs law were unconstitutional, by virtue of the fact that materials being imported by gay and lesbian bookstores were being unfairly targeted (Little Sisters Book and Art Emporium v. Canada (Minister of Justice) (2000)).
A full transcript of R v. Butler is available at http://www.lexum.umontreal.ca/csc-scc/en/pub/1992/vol1/html/1992scr1_0452.html