| R. v. Butler | |||||||||
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| Hearing: June 6, 1991 Judgment: February 27, 1992 |
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| Holding | |||||||||
| Section 163 of the Criminal Code infringes s. The Manitoba Court of Appeal is the highest Court of Appeal in the Canadian province of Manitoba. 2(b) of the Charter but can be justified under s. 1 of the Charter. | |||||||||
| Court membership | |||||||||
| Chief Justice: Antonio Lamer Puisne Justices: Gérard La Forest, Claire L'Heureux-Dubé, John Sopinka, Charles Gonthier, Peter Cory, Beverley McLachlin, William Stevenson and Frank Iacobucci |
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| Reasons given | |||||||||
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Majority by: Sopinka |
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R. Joseph Antonio Charles Lamer, PC, CC, CD (July 8 1933 &ndash November 24 2007 was a Canadian lawyer jurist and Chief Justice GĂ©rard Vincent La Forest (born April 1, 1926) was a Puisne Justice of the Supreme Court of Canada from January 16, 1985 Claire L'Heureux-DubĂ© (born September 7, 1927) served as a justice on the Supreme Court of Canada from 1987 to 2002 John Sopinka QC ( March 19 1933 - November 24 1997) was a Canadian lawyer and Puisne justice on the Supreme Charles Doherty Gonthier, CC, BA, BCL ( August 1, 1928) was a Puisne judge on the Supreme Court of Canada from Peter deCarteret Cory, CC, QC, BA, LLB, LLD (born October 25, 1925) was a Puisne judge of the Beverley McLachlin PC (born September 7, 1943) is the Chief Justice of Canada, the first woman to hold that position William Alexander Stevenson (born May 7, 1934) was a Puisne Justice of the Supreme Court of Canada Frank Iacobucci, CC (born January 29 1937) was a Puisne Justice on the Supreme Court of Canada from 1991 to 2004 when he retired from v. Butler, [1992] 1 S. C. R. 452 is a leading Supreme Court of Canada decision on pornography and state censorship. The Supreme Court of Canada ( French: Cour suprĂȘme du Canada) is the highest court of Canada and is the final court of appeal in the Canadian Pornography or porn is the explicit depiction of Sexual subject matter with the sole intention of sexually exciting the viewer Censorship is the suppression of speech or deletion of communicative material which may be considered objectionable harmful or sensitive as determined by a censor 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[1] and the Women's Legal Education and Action Fund,[2] but a loss for alternative sexualities. Freedom of speech is the freedom to speak freely without Censorship or Limitation. Section Two of the Canadian Charter of Rights and Freedoms is the section of the Constitution of Canada 's Charter of Rights that lists The Canadian Charter of Rights and Freedoms (also known as The Charter of Rights and Freedoms or simply the Charter) is a Bill of rights entrenched in the 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 Feminism is a discourse that involves various movements theories, and Philosophies which are concerned with the issue of Gender difference, advocate [3]
Contents |
Background
The case involved one Donald Victor Butler, who owned a store called Avenue Video Boutique in Winnipeg. Winnipeg (ËwÉȘnÉšpÉg is the capital and largest city in the Canadian province of Manitoba, and 7th largest municipality in Canada with a population The business, begun in August 1987, handled pornographic videos and magazines and sexual objects. That month, the police arrived with a search warrant 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. A search warrant is a Court order issued by a Judge or Magistrate that authorizes law enforcement to conduct a Search The Criminal Code of Canada (long title An Act respecting the criminal law, R In October of that year, Butler simply restarted the business as it had been before, and the police arrested Butler.
Decision
Freedom of expression
The Court found laws against obscenity would breach freedom of expression. The Manitoba Court of Appeal 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. The Manitoba Court of Appeal is the highest Court of Appeal in the Canadian province of Manitoba. Irwin Toy Ltd v Quebec (Attorney General, 1 SCR 927 is a landmark Supreme Court of Canada decision on Freedom of expression in section 2(b 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. R v Keegstra, 3 SCR 697 is a landmark Freedom of expression decision of the Supreme Court of Canada where the Court upheld the Criminal Code 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. Reference re ss 193 and 1951 of Criminal Code, (the Prostitution Reference) 1 S
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 1 of the Charter. 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 This raised the question as to whether 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. R v Morgentaler [1988] 1 SCR 30 was a decision of the Supreme Court of Canada wherein the Abortion provision in the Criminal Code of 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). R v Oakes 1 SCR 103 is a case decided by the Supreme Court of Canada which established the famous Oakes test, an analysis of the limitations 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 is a term for speech intended to degrade intimidate or incite violence or prejudicial action against a person or group of people based on their race, Gender 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 Parliament of Canada (Parlement du Canada is Canada 's legislative branch, seated at Parliament Hill in Ottawa, Ontario.
The Court found the law to be proportional. The legislation did not outlaw non-degrading erotica. Erotica (from the Greek Eros â"desire" or "curiosa" works of art including literature, photography film sculpture 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.
Concurrence
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) (2000) demonstrated the Butler method of analysis of pornography applies to homosexual pornography. Little Sisters Book and Art Emporium v Canada (Minister of Justice 2 S Critics of Butler had said 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. R v Labaye, 3 SCR 728 2005 SCC 80 was a decision by the Supreme Court of Canada on criminal Indecency. Group sex is Sexual behaviour involving more than two participants at the same time 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
References
- ^ Lorraine Johnson, "Sideways Glances: Looking at Porn, Looking at Art," in Suggestive Poses: Artists and Critics Respond to Censorship, ed. This is a chronological list of notable cases decided by the Supreme Court of Canada from appointment of Antonio Lamer as Chief Justice of Canada R v Glad Day Bookshops Inc, (1993 is a leading Ontario Superior Court of Justice decision on Pornography and Homosexuality. Lorraine Johnson (Toronto: Toronto Photographers Workshop and The Riverbank Press, 1997), p. 16, quoting Ms. magazine. Ms is an American feminist magazine co-founded by American feminist and activist Gloria Steinem and founding
- ^ Christopher P. Manfredi; Scott Lemieux, "Judicial Discretion and Fundamental Justice: Sexual Assault in the Supreme Court of Canada," The American Journal of Comparative Law, Vol. 47, No. 3. (Summer, 1999), p. 500.
- ^ Segal, Lynne (February 1998), âOnly the Literal: The Contradictions of Anti-pornography Feminismâ, Sexualities 1 (1): 52, ISSN 1363-4607, DOI 10. An International Standard Serial Number ( ISSN) is a unique eight-digit number used to identify a print or electronic Periodical publication. 1177/136346098001001003
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