The Appellant, Butler, had been convicted of possession and distribution of “obscenity,” for material sold at his Winnipeg, Manitoba retail outlet, Avenue Video Boutique. The task of the Supreme Court of Canada in considering Mr. Butler’s appeal was to make a determination as to the constitutionality of Section 163 of the Criminal Code, Canada’s obscenity law, and further to interpret Section 163 to determine what types of material fall under the umbrella of “obscenity.”
The court ultimately concluded that Section 163 infringed upon the Charter right to freedom of expression, but was justifiable as a “reasonable limit” to this right under Section 1 of the Charter.
This limit was justified by pointing to potential harms of violent and “degrading” pornography, which the court equated with “obscenity”, as follows:
The impugned provision does not proscribe sexually explicit erotica without violence that is not degrading or dehumanizing. It is designed to catch material that creates a risk of harm to society. It might be suggested that proof of actual harm should be required. It is apparent from what I have said above that it is sufficient in this regard for Parliament to have a reasonable basis for concluding that harm will result and this requirement does not demand actual proof of harm.
Throughout the Butler decision, the court put great emphasis on “community standards” of what types of material can and cannot be tolerated, and in doing so entrusted the general public with the task of determining what kinds of material are so harmful as to justify their prohibition. In this way, the legal concept of “obscenity” remains subjective, changeable, and arguably meaningless.
Click here for the full text of the decision